How \u3ci\u3eDaubert\u3c/i\u3e and its Progeny Have Failed Criminalistics Evidence and a Few Things the Judiciary Could Do About It.

Part I documents how courts have failed to faithfully apply Daubert’s criteria for scientific validity to this type of evidence. It describes how ambiguities and flaws in the terminology adopted in Daubert combinedwith the opaqueness of forensic-science publications and standards have been exploited to shield some test methods from critical judicial analysis. Simply desisting from these avoidance strategies would be an improvement. Part II notes how part of the U.S. Supreme Court’s opinion in Kumho Tire Co. v. Carmichael has enabled courts to lower the bar for what is presented as scientific evidence by mistakenly maintaining that there is no difference between that evidence and other expert testimony that need not be scientifically validated. It suggests that a version of Rule 702 that explicitly insists on more rigorous validation of evidence that is promoted or understood as being “scientific” would be workable and more clearly compatible with the rule’s common law roots. Part III sketches various meanings of the terms “reliability” and “validity” in science and statistics, on the one hand, and in the rules and opinions on the admissibility of expert evidence, on the other. It discusses the two-part definition of “validity” in the PCAST report and the proposed criteria for demonstrating scientific validity of subjective pattern-matching testimony. It contends that if “validity” means that a procedure (even a highly subjective one) for making measurements and drawing inferences is fit for its intended use, then whether test results that have higher error rates than the ones selected in the report might nevertheless assist fact finders who are also appropriately informed of the evidence’s probative value must be evaluated. Finally, Part IV articulates two distinct approaches to informing judges or jurors of the import of similarities in features: the traditional one in which examiners opine on the truth and falsity of source hypotheses and a more finely grained one in which criminalists report only on the strength of the evidence. It suggests that the rules for admitting scientific evidence need to be flexible enough to accommodate the latter, likelihood-based testimony when it has a satisfactory empirically established basis

The Numbers Game: Statistical Inference in Discrimination Cases

A Review of Statistical Proof of Discrimination by David Baldus and James Col

Paradoxes, Gedanken Experiments and the Burden of Proof: A Response to Dr. Cohen\u27s Reply

This article responds to L. Jonathan Cohen\u27s critique of the author\u27s position regarding the problem of naked statistical evidence. Cohen argues that the kind of probability at work in litigation does not conform to the axioms of mathematical probability. The author responds by suggesting that the familiar theory of probability needs no revision to account for the reluctance of a few courts to permit plaintiffs to prevail on the strength of background statistics alone. One need not adopt Dr. Cohen\u27s esoteric mathematical structure to explain the burden of proof in civil cases. The article shows that whether or not one accepts the subjective interpretation of probability, nothing in Cohen\u27s most recent paper establishes that forensic probabilities are incommensurable with the usual mathematical axioms. It also considers Cohen\u27s claim that the subjective interpretation is a dangerously inappropriate paradigm for the courts

A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases

Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for analyzing the constitutionality of databases of biometric data. It demonstrates that the opinions on DNA collection before conviction have lost sight of the foundations of balancing tests in Fourth Amendment analysis. It argues that balancing is acceptable only for “special needs” or “administrative search” cases, for defining new exceptions to the warrant requirement of the Fourth Amendment, or for applying fact-intensive standards such as probable cause, reasonable suspicion, or excessive force. The Article examines how DNA collection before conviction might be brought under the traditional special-needs doctrine and how it might fit within a new, but coherent exception for certain forms of biometric data. This framework permits the courts to analyze DNA databases without diluting the protections guaranteed by the Fourth Amendment, and it provides a sound rationale for the current law on arrestee fingerprinting

Credal Probability

This article responds to Paul Bergman and Al Moore\u27s doubt that ideal triers of facts would be Bayesians. They argue that Bayes\u27 rule, and probability theory in general, fails as a theoretical factfinding model. While probability has long been an accepted measure of belief in empirical propositions and the validity of inductive arguments, this articles addresses Bergman and Moore\u27s doubts directly. It shows how their examples demonstrating the frequentist character of Bayesian methodology or the fallacies in Bayesian analysis are easily handled without a frequentist interpretation of probability. Then it shows that an ideal juror\u27s partial beliefs will conform to the calculus of probabilities

Gina\u27s Genotypes

In August 2009, the Board of Trustees of the University of Akron added to the university\u27s employment policy the following proviso: any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check. Although the federal government does not do background checks with DNA, the policy is significant because it highlights a largely unexplored feature of the Genetic Information Nondiscrimination Act of 2008 ( GINA ). Hailed by the late Senator Edward Kennedy as the first civil rights bill of the new century of life sciences, GINA generally prohibits employers from asking for genetic information. The faculty senate and outside commentators have declared that the Akron policy is of doubtful legality because it appears to violate GINA. However, appearances can be deceptive. GINA\u27s ban on the acquisition of genetic information also can be read so that it does not reach nonmedical DNA tests. Because employers have nondiscriminatory reasons to use forensic DNA identification technology, this narrower interpretation is more faithful to the express purpose of the law

\u27False But Highly Persuasive:\u27 How Wrong Were the Probability Estimates in McDaniel v. Brown?

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues - the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court\u27s decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist\u27s letter twelve years after the trial. This essay clarifies the nature and extent of the errors in the presentation of the DNA evidence in Brown. It questions (1) whether the transposition of a conditional probability (of the DNA match given the defense hypothesis that a man unrelated to the defendant was the source of the semen on the victim\u27s panties) amounted to a deprivation of due process and (2) whether the position of the Ninth Circuit Court of Appeals, the defendant, and various amici curiae that the probability of a match to any of four brothers should have presented rather than the probability of a match to a single brother

Thinking Like a Statistician: The Report of the American Statistical Association Committee on Training in Statistics in Selected Professions

In 1983, a subcommittee of the American Statistical Association composed of legal educators and one judge issued a report describing existing programs for educating law students in statistics and offering recommendations for improving these programs. This article summarizes that report

Cell Phones, Brain Cancer, and Scientific Outliers in Murray v. Motorola

Pending before the District of Columbia\u27s highest court in a case asking whether cell phones can cause cancer is whether to replace the jurisdiction\u27s venerable Frye standard for reviewing the admissibility of scientific evidence with the approach adopted by the U.S. Supreme Court in Daubert v. Merrell Dow. The author analyzes one aspect of the two evidentiary standards that leads him to question the trial judge\u27s suggestion in Murray v. Motorola that adopting the Daubert perspective would allow greater leeway in excluding the plaintiff\u27s evidence

Why So Contrived? Fourth Amendment Balancing, Per Se Rules, and DNA Databases After Maryland v. King

In Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court narrowly upheld the constitutionality of routine collection and storage of DNA samples and profiles from arrestees. In doing so, it stepped outside the usual framework that treats warrantless searches as per se unconstitutional unless they fall within specified exceptions to the warrant and probable cause requirements. Instead, the Court balanced various individual and state interests. Yet, as regards the state interests, the Court confined this direct balancing analysis to the perceived value of using DNA to inform certain pretrial decisions. Oddly, it avoided relying directly on DNA’s more obvious value in generating investigative leads in unsolved crimes. This Article suggests that this contrived analysis resulted from the structure of existing Fourth Amendment case law (and perhaps a desire to avoid intimating that a more egalitarian and extensive DNA database system also would be constitutional). It demonstrates that the opinion does not support a “no lines” system of ad hoc judgments about the reasonableness of every search using the totality of the circumstances. Recognizing that the existing framework of categorical exceptions to the warrant requirement diverges from an older “warrant preference” rule that demands a warrant whenever feasible, the Article shows that King leaves the current per se framework largely intact. Nevertheless, this Article questions the resort to direct balancing. It presents a more coherent doctrinal framework for scrutinizing not just DNA profiling, but all forms of biometric data collection and analysis. In this regard, it notes that the dissenting King opinion overstates the differences between fingerprinting and DNA profiling as currently practiced. Finally, it suggests that the cramped reasoning in both opinions limits the implications of the case for more aggressive DNA database laws — ones that cover more crimes, more people, more loci, and more methods for acquiring DNA samples